An arms export control agency worthy of Canada

Readers of this blog will be only too aware of the long and sordid saga of our continuing arms exports to Saudi Arabia.

These exports have continued despite heinous internal repression in the Saudi kingdom, state-planned assassinations potentially reaching onto Canadian territory and, the ultimate black eye, a UN Human Rights Report explicitly naming and shaming arms exporters, including Canada, Iran and the UK, for perpetuating the conflict in Yemen and the almost incalculable human suffering it has engendered.

In the words of Oxfam Canada in a 17 September Open Letter to PM Trudeau:

The Saudi arms deal … is fundamentally incompatible with a feminist foreign policy. Women and other vulnerable or minority groups are systemically oppressed in Saudi Arabia and are disproportionately impacted by the conflict in Yemen. Direct support of militarism and oppression, through the provision of arms, is the exact opposite of a feminist approach to foreign policy.

But, alas, there is more, much more.

Canadian drone technology in Libya, Syria and Iraq conflicts

Project Ploughshares on September 22nd released a detailed report entitled: Killer Optics: Exports of WESCAM Sensors to Turkey – A litmus test of Canada’s compliance with the Arms Trade Treaty.  This document exhaustively catalogues evidence of Canadian drone technology exported to Turkey being used in conflicts in Libya, Syria and Iraq. The allegations of Turkey transferring this equipment to armed groups in Libya, contrary to a decade-long UN arms embargo, are particularly shocking:

Speaking to Marc Godbout of Radio Canada International, RI President Peggy Mason stated:

There is no justification for breach of a binding UN arms embargo by any UN member state, let alone by one like Canada that has built its foreign policy, and indeed its international reputation, around the primacy of a “rules based international order” to which all states adhere.

Based on government and public records, media reports, academic sources, accounts from credible human-rights monitors, and open-source data, Project Ploughshares concludes there is strong evidence that WESCAM EO/IR sensors, mounted on unmanned aerial vehicles (UAVs), have been used extensively by Turkey in its recent military activities. The report goes on to say:

Such use raises serious red flags, as it has been alleged that Turkey’s military has committed serious breaches of international humanitarian law (IHL) and other violations, particularly when conducting airstrikes.

Canadian drone technology in the Armenia–Azerbaijan conflict

Then came allegations that this same Canadian drone technology was being used in the conflict between Armenia and Azerbaijan in Nagorno-Karabakh.

With the Armenian-Canadian community calling for an export ban, a familiar pattern emerged, with Foreign Minister François-Philippe Champagne announcing that:

Over the last several days, certain allegations have been made regarding Canadian technology being used in the military conflict in Nagorno-Karabakh.

Upon learning of these allegations, I immediately directed Global Affairs Canada to investigate these claims.

In line with Canada’s robust export control regime and due to the ongoing hostilities, I have suspended the relevant export permits to Turkey, so as to allow time to further assess the situation.

What is the point of Global Affairs investigating itself?

Maybe this time the evidence of Canadian drones in use against civilians in Nagorno-Karabakh will prove too overwhelming to ignore. But history suggests otherwise, with repeated reviews whitewashing clear evidence of the misuse of Canadian military equipment exported to Saudi Arabia.

On the other hand, it should be noted that, with respect to the Saudi exports, Global Affairs only suspended the granting of new permits, while exports continued apace under existing permits. In this case, the government seems to be broadening the scope of the suspension to all “relevant permits”.

Only time will tell, and there are many reasons to be skeptical about the current process. In a recent Globe and Mail article by Steven Chase, Ploughshares Executive Director Cesar Jaramillo commented:

There is an obvious conflict of interest because they [GAC] are pursuing two contradictory policy objectives: the selling of weapons and the protection of human rights….

RI President Peggy Mason added:

“Essentially they’re being asked to conclude they were wrong,” she said of the investigation. “How likely, really, is that?”

And note that, in many cases, including Canadian drone technology in Libya contrary to a UN arms embargo, as well as the case of Canadian riot control gear in Belarus highlighted in our 5 October blog, there is no review at all to determine if Canadian and international rules have been breached.

New Canadian export control legislation looks good on paper

Toronto-based trade lawyer Cyndee Todgham-Cherniak argues in the same Globe and Mail article that the recent changes to the Exports and Imports Permits Act (EIPA)

effectively restrict the ability, meaning the discretion, of the Minister of Foreign Affairs to issue a permit or where applicable, to remove the suspension on an export permit.

This is a quite accurate recitation of the new regulatory framework now in place, but the problem is not the law as written — but the law as applied — by Global Affairs.

How can the Government of Canada be compelled to act in accordance with Canadian law?

With respect to breaches of UN arms embargoes, the UN Security Council sanctions committee that oversees the Libya embargo has some very potent tools at its disposal to ensure that member states fall into line. Chief among them is the power to recommend to the full UN Security Council that “secondary sanctions” be applied against the states or other entities who are UN sanctions busters.

But the current paralysis of the Security Council, with veto-wielding permanent members on different sides of the Libya conflict and even directly arming some factions or turning a blind eye to others doing so, means that these enforcement powers are not being used.

The only other recourse then (aside from the court of public opinion) is to take the Government of Canada to Federal Court, as McGill law professor Daniel Turp did under Canada’s previous export control regulations. As we have previously reported, he lost the case at the appeal level when the court was reluctant to second-guess the Minister of Global Affairs given his “wide discretion” under the then applicable legislation.

Mason comments:

As trade lawyer Todgham-Cherniak has helpfully underscored, there is no longer such wide ministerial discretion, making a successful challenge to many of Foreign Minister Champagne’s questionable decisions to grant permits much more likely.

But such legal proceedings are lengthy and expensive and necessarily after the fact. That is why we need a new independent agency to impartially administer our arms exports in full accordance with Canadian and international law.

The case for an independent agency

What are the arguments in favour of an independent agency, outside Global Affairs Canada, to administer Canada’s arms export control regime? They include:

  • No conflict of interest on the part of the administrators between trade promotion and respecting human rights, UN arms embargoes and other Canadian legal obligations;
  • Officials not being asked to review their own past recommendations
  • Independent expert legal opinion based on all available evidence
  • A House of Commons Committee could be mandated to provide parliamentary oversight

Taking the politics out the equation

World Federalist Movement-Canada board member Robin Collins raised another striking benefit of this new approach in a letter published by the Globe and Mail on 9 October, which we reprint here in its entirety:

Globe and Mail, Oct 9, 2020

KEEP THEM SEPARATED

Re Critics Question Whether Global Affairs Can Impartially Investigate Arms Exports (Oct. 8): 

The government’s internal dilemma is laid bare. When one is expected to simultaneously enable sales of weapons and protect human rights, the politics are immediately dodgy. Let’s remove the electoral liability.

As critics such as Project Ploughshares and Rideau Institute insist, Canada should set up an independent, non-partisan oversight body focused on our obligations under the Arms Trade Treaty. That way, potential job losses would not threaten the electability of parliamentarians, but rather inspire industrial conversion to alternative products and associated jobs.

Robin Collins

Ottawa

Whither Canada?

In light of the blatant conflict of interest at the heart of the administration of Canada’s export control regime by Global Affairs Canada, we call on the government (1) to mandate an independent, impartial agency to carry out this vital role, and (2) to support the establishment of a House of Commons committee to ensure adequate parliamentary oversight.

And now for some good news heading into the Thanksgiving Weekend!

Nobel Peace Prize awarded to the UN World Food Programme

For the full announcement, click here.  For media commentary on this award, click here.

In a comment that brings together both strands of today’s blog, World Food Programme (WFP) Executive Director David Beasley is adamant:

There’s no two ways about it — we can’t end hunger unless we put an end to conflict.

Photo credit: Couresty ekathimeriri.com (Turkish Foreign Ministry)

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